The rule of forensic immunity which protected barristers and solicitor advocates from negligence actions taken in respect of their courtroom conduct was no longer justified in the modern legal environment.

SUMMARY

This was a series of test cases concerning the liability of solicitor advocates for negligence actions in respect of action they had taken, either in court, or "intimately connected" with proceedings in court, which have hitherto been covered by the immunity rule in Rondel v Worsley. This rule has been justified by a number of public policy considerations:

It is necessary to prevent re-litigation of the same issues, otherwise than on appeal

Advocates owe a duty not only to their clients but to the court, a duty which might be impaired if the advocate was at risk of a negligence action

Immunity is the quid pro quo for the cab rank rule; if a barrister has to take whatever client approaches him, then he should be protected from vexatious legal actions

Advocates should enjoy the same immunity afforded to the other participants in a trial, the judge, jurors and witnesses

In this case the respondent clients asked the House of Lords to do a root and branch review of the rule of immunity in the much changed legal environment of the 21st Century.

Held:

The immunity could no longer be said to be justified. The rule in Hunter v West Midlands Police [1982] AC 529 which made it an abuse of the process of the court to reenact criminal trials was an adequate safeguard against vexatious claims against their defence lawyers by criminal defendants. (Three of the seven Law Lords dissented with this view, maintaining that the core forensic immunity should be retained for advocates in criminal proceedings) As for civil litigation, relitigation is prevented by the private law rules of issue estoppel and res judicata. Apart from this the much easier striking out powers under CPR, greater powers for judicial control of litigation, and the lack of availibility of legal aid for negligence actions would reduce the risk of unfounded actions

As Lord Hoffmann said:

"The empirical evidence to support the divided loyalty and cab rank arguments is lacking; the witness analogy is based upon mistaken reasoning and the collateral attack argument deals with a real problem in the wrong way."

COMMENT (July 2000)

When this case was argued before the House of Lords in March 2000, considerable attention was devoted to the question whether the immunity rule was an infringement of the individual's right of access to court under Article 6(1) ECHR. Whilst the Lords based their decision in the end on domestic legal principles, the issues that arose during the course of the arguments cast a very interesting light on how the House of Lords perceives its role vis a vis the Strasbourg Court. See also R v Central Criminal Court ex parte Bright and Others July 21 2000]

The respondents argued that forensic immunity offended Article 6 as interpreted by Osman v United Kingdom [2000] 29 EHRR 245. The appellants maintained that Article 6 did not bite, because there was no right to sue advocates to which it should attach - so this was analogous to the position in Powell v Rayner v United Kingdom [1990] 12 EHRR 355. Osman is a controversial decision, and there was some debate over what exactly the Strasbourg Court understood to be the applicable principles in the English law of negligence. In the course of this debate it emerged that, as a consequence of the Strasbourg ruling in Osman that immunity of the police from negligence actions breached Article 6, the British government had informed the Strasbourg enforcement body that they had complied with the ruling in Osman and informed heads of police and the courts not to take or accept public policy immunity points. Since the Law Lords are not entirely in agreement with the Strasbourg Court's interpretation of the English law of negligence in Osman, they found this compliance notice remarkable. See Rosalind English, "The Law Lords are already fighting Strasbourg over the Human Rights Act", The Times, Thursday June 29 p.22.

The judgment also contains an interesting discussion on the application of Article 6 to English negligence principles, seeking to distinguish a mere procedural immunity (which does not offend Article 6) from a blanket ban (which does): see the opening remarks in his judgment by Lord Hobhouse.